On 20 May 2013, the Dutch Minister of Economic Affairs introduced a proposed amendment on cookies for public consultation. The draft amendment is the result of the new way the Dutch government looks at cookies, and it aims to exempt additional categories of cookies from the cookie rules. In the Explanatory Memorandum to the draft amendment, the Minister took the opportunity to clarify that cookie consent might, under certain circumstances, be given implicitly and that if browsers allow users to actively configure its settings, this could constitute consent.
First, the draft amendment aims to exempt those cookies with no or low consequences to the user's privacy from the cookie consent and information requirements. If the privacy consequences are indeed low, this includes, but is not limited to, the placing of analytics (for analysing and improving a website), affiliate (to analyse the effectiveness of advertisement) and a/b-testing cookies (for comparing the effectiveness of multiple advertisement variants). Earlier, the Minister had indicated that only first party analytics cookies may be exempted from the consent requirement. The exemption in the consulted amendment relates to both first and third party cookies.
Secondly, in the Explanatory Memorandum the Minister states that
where the provision requires prior informed consent (opt-in) from
the user, this consent may also be given implicitly, as
long as the implied consent is based on a clear action by the user,
and not on an omission to act. According to the Minister, if the
user is clearly informed upon entry of the website that the
continued use of the website constitutes consent with the placement
of cookies, doing so implies giving consent for the placement of
cookies. The Minister refers to an Opinion of
WP29, which states that
"[consent] could include [...] a behaviour from which consent
can be reasonably concluded."
Finally, if a web browser enables users to consent to the placement of specific cookies coming from specific parties by actively configuring the browser's settings, this should be regarded as prior informed consent from the user, according to the Minister. Pre-configured browser settings, however, cannot construe consent.
The deadline for the consultation ended on 1 July 2013. At the moment, the Dutch government is in the process of drafting the final proposed amendment, which will be sent to the Dutch parliament upon completion. Parliament then still has the right to make amendments to the proposal before it is enacted. It remains therefore uncertain when and how the proposal will be enacted.
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